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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
B.F.L., a minor,
Appellant, Court of Appeals No. A-10468
Trial Court No. 3AN-08-256 DL
v.
STATE OF ALASKA, O P I N I O N
Appellee.
End of Caption No. 2267 June 11, 2010
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Eric A. Aarseth,
Judge.
Appearances: Renee McFarland, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant. Joan
M. Wilson, Assistant District Attorney,
Anchorage, and Daniel S. Sullivan, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
MANNHEIMER, Judge.
B.F.L., a minor, appeals the superior courts order
committing him to the | custody of the Department of Health and Social Services pursuant to AS 47.12.120(b | )(1 | ) in other words, an order that allows the Department to place B.F.L. in a juvenile detention facility. B.F.L. argues that the superior court failed to adequately consider the feasibility of a disposition under either subsection 120(b | )(2 | ) or subsection 120(b | )(3 | ) of the statute that is, a disposition that would have limited the Department to placing B.F.L. in non-detention facilities. |
| As we describe in this opinion, B.F.L. has a history of repeated failures both on probation and in non-detention placements. In addition, B.F.L. has demonstrated resistance to needed mental health treatment and medication. These factors provide ample basis for the superior courts decision to allow the Department to place B.F.L. in a detention facility. | ||||||
B.F.L.s history within the
juvenile justice system
B.F.L.s history of juvenile delinquency began
in the summer of 2006, just after he turned fifteen
years old. The Department filed a delinquency petition
charging him with second-degree burglary, fourth-degree
criminal mischief, fourth-degree theft, and sixth-
degree misconduct involving a controlled substance.
In October 2006, B.F.L. admitted the
burglary, theft, and criminal mischief charges.
Because he was a first offender, the superior court
held his delinquency adjudication in abeyance for six
months, with the anticipation that if he demonstrated
rehabilitative progress during these six months of
informal probation, the delinquency case would be
dismissed.
As part of his informal probation, B.F.L.
agreed to various conditions of conduct formulated by
the Department. Among these conditions, B.F.L. agreed
that he would attend school regularly, that he would
live with his mother and follow the rules set by her,
that he would keep in regular contact with the
Departments juvenile probation office, and that he
would not ingest illegal substances.
One month after agreeing to these conditions,
B.F.L. stopped going to school, and his mother reported
that he was out of control. At about the same time,
B.F.L. attempted to commit suicide. The superior court
issued a warrant for B.F.L.s arrest; he was taken into
custody on December 3, 2006 and placed at the Fairbanks
Youth Facility.
B.F.L. remained in pre-adjudication custody
at the Fairbanks Youth Facility until March 8, 2007.
On that date, the superior court rescinded the hold in
abeyance agreement, and the superior court adjudicated
B.F.L. a delinquent minor.
In a delinquency proceeding, if the superior
court decides to subject the minor to some level of
ongoing government supervision, there are essentially
three types of disposition available to the court under
the provisions of AS 47.12.120(b).
The least restrictive disposition is defined
in subsection (b)(2) of the statute. Under this
subsection, the court places the minor on probation
(supervised by the Department), but releases the minor
to the custody of parents, guardians, or other suitable
persons.
The next level of restriction is defined in
subsection (b)(3) of the statute. Under this
subsection, the court commits the minor to the custody
of the Department, giving the Department the authority
to release the minor to the custody of parents or
guardians, or to place the minor in a foster home or
any suitable non-detention residential facility.
(Subsection (b)(5) of the statute, which authorizes the
superior court to commit the minor to the custody of
the Department for the specific purpose of placing the
minor in an adventure- based education program, appears
to be a more restricted variant of the commitment
authority granted by subsection (b)(3).)
The highest level of restriction is defined
in subsection (b)(1) of the statute. Under this
subsection, the court commits the minor to the custody
of the Department, giving the Department the authority
to make any placement it deems appropriate including
placement in a detention facility.
Both Alaska Delinquency Rule 11(e) and its
companion statute, AS 47.12.140(2), specify that when
the superior court chooses among the three dispositions
defined in AS 47.12.120(b)(1) (b)(3), the court must
impose the least restrictive alternative, given the
rehabilitative needs of the minor and the need to
protect the public. Delinquency Rule 11(e) also
declares that the State bears the burden of proving by
a preponderance of the evidence that the chosen
disposition is the least restrictive alternative.
In B.F.L.s case, the superior court concluded
that a disposition under subsection (b)(2) was
appropriate. That is, the court placed the minor on
probation to the Department. As a special condition of
probation, the court ordered B.F.L. to complete the
residential treatment program offered by Alaska
Childrens Services, but then B.F.L. was to be released
to the custody of his sister in Idaho.
B.F.L. began his treatment at Alaska
Childrens Services, but in early July (that is, after
about four months), he absconded from this residential
program. B.F.L. remained at large for four days until
he was arrested. When B.F.L. was arrested, the
Department asked Alaska Childrens Services to re-admit
B.F.L. into the treatment program, but Alaska Childrens
Services refused. The staff at Alaska Childrens
Services concluded that B.F.L.s behavior was too risky
for the level of supervision that they could offer.
B.F.L. remained in the Departments custody,
first at the McLaughlin Youth Center and then at the
Fairbanks Youth Facility, until the end of September
2007, when he was released to his father and flown to
Anchorage for admission to the Alaska Military Youth
Academy. In conjunction with this placement, B.F.L.s
conditions of probation were modified to require
successful completion of the Alaska Military Youth
Academy.
Two weeks after his admission to the Alaska
Military Youth Academy, B.F.L. absconded. A bench
warrant was issued for his arrest on October 16th, but
this warrant remained unserved until November 1st when
B.F.L. was arrested for vehicle theft.
On December 6, 2007, the Department filed a
new delinquency petition against B.F.L.. On January
16, 2008, B.F.L. admitted several of the allegations in
this petition: that he committed first-degree vehicle
theft, that he drove without a valid license, and that
he failed to obey the rules of his placement.
At this point, the Department asked the
superior court to issue a disposition under subsection
(b)(1) of the statute i.e., an order that would allow
the Department to place B.F.L. in a detention setting.
B.F.L. wrote a letter to the superior court,
arguing against institutionalization. In this letter,
B.F.L. told the judge:
I have learned ways to deal with things
and ways to avoid things. In the past[,] I
have not really [taken] account [of] what I
had to look forward [to,] because I didnt
really think I had much[.] [B]ut now I see I
have a whole life ahead of me[,] full of
options[;] now I know what I have. I have a
loving family who cares about me[.] I know
now [that] I have what it takes to win[, or
to] fail[,] but Im out to win ... . I dont
see where further treatment or
institution[alization] will benefit me in any
way, [and] I believe I have the tools to win.
B.F.L. asked the superior court to again
release him to his sister in Idaho.
B.F.L.s attorney submitted a mental
health evaluation conducted by Moreen Fried,
a clinical social worker. Ms. Fried
concluded that B.F.L. likely suffered from
bipolar disorder, based on his rapidly
alternating moods [and] symptoms of mania and
depression.
Ms. Fried expressed concern that
B.F.L.s father was apparently opposed to
allowing B.F.L. to take psychotropic
medication to treat this disorder, and she
recommended that B.F.L. be placed in a
residential treatment facility that could
respond to, and treat, B.F.L.s psychiatric
condition. Ms. Fried specifically
recommended the residential treatment program
at Alaska Childrens Services the place from
which B.F.L. had earlier absconded.
Indeed, the Department of Health
and Social Services had already re-submitted
B.F.L.s case to Alaska Childrens Services,
asking them to evaluate his suitability for
their program. Alaska Childrens Services
concluded that B.F.L. was unsuitable for
placement in their residential program. They
recommended a locked-egress facility i.e., a
detention facility for [B.F.L.s] safety.
In March 2008, based on all of the
foregoing, the superior court followed the
Departments recommendation and issued a
disposition order under subsection (b)(l) of
the statute that is, an order that allowed
the Department to place B.F.L. in a detention
facility. However, the court told B.F.L.
that if he took his medication as directed,
and if he showed progress toward
rehabilitation in the next four months, the
court would be willing to consider amending
the disposition order to a disposition under
either subsection (b)(2) or (b)(3) of the
statute.
A little over three months later,
on June 19, 2008, the Department submitted
its review of B.F.L.s progress. According to
the Departments report, by the second week of
B.F.L.s institutionalization at the Fairbanks
Youth Facility, he began resisting the rules
of the facility and became verbally abusive
and argumentative with [the] staff. One
month into his treatment, B.F.L. was sent to
the detention unit of the facility for
engaging in a fight. One month later, B.F.L.
slapped another resident.
One of the Fairbanks Youth
Facilitys mental health clinicians had
evaluated B.F.L. and had confirmed Ms. Frieds
earlier diagnosis of bipolar disorder. This
clinician recommended continued treatment in
a detention facility.
In June and July, the superior
court conducted its review hearings in
B.F.L.s case. Despite the Departments
recommendation that the court re-affirm its
subsection (b)(1) disposition, the court
amended the judgement to a subsection (b)(2)
disposition that is, a probationary
disposition and allowed B.F.L. to be
released to live with his mother in
Anchorage.
(Because of this Anchorage
placement, the superior court granted the
Departments request for a change of venue in
the delinquency proceeding, from Fairbanks to
Anchorage.)
Within weeks after the superior
court released B.F.L. to his mother, B.F.L.s
mother contacted the Department to report
that B.F.L. was misbehaving and would often
yell at his mother and her sister. Then, one
week later, B.F.L. left his mothers home and
did not return. On August 29th, the
Department petitioned the superior court to
revoke B.F.L.s probation.
A little over two weeks later, on
September 15th, B.F.L. was observed on the
grounds of West High School in Anchorage. A
school official who was familiar with B.F.L.
attempted to talk to him, but B.F.L. ran
away. B.F.L.s whereabouts remained unknown
until October 26th. On that day, B.F.L. was
arrested in Dillingham on charges of first-
degree burglary and second-degree theft.
B.F.L. was detained for a time on these
Dillingham charges, but ultimately these new
charges were dismissed and B.F.L. was
returned to Anchorage to face probation
revocation proceedings.
B.F.L. admitted that he had
violated his probation, but his attorney
again argued against a subsection (b)(1)
disposition. The defense attorney attributed
B.F.L.s failure on probation to his mothers
shortcomings. Specifically, the defense
attorney alleged (1) that B.F.L.s mother knew
where he was during the entire time that he
was gone from her home; (2) that B.F.L.
attempted to get counseling, but his mother
told him that she did not have the time to
help him; and (3) that B.F.L. repeatedly
called his mother and asked her if he could
return to school. The defense attorney asked
the superior court to again release B.F.L. to
the custody of a family member, under close
supervision. In particular, B.F.L.s father,
who lives in Two Rivers (a small town outside
of Fairbanks) told the court that he was
willing to have B.F.L. live with him.
B.F.L.s disposition hearing was
held in front of Childrens Master William
Hitchcock over the course of three days in
late February and early March 2009. The
juvenile probation officer who appeared on
behalf of the Department told the court that
the Department was again seeking a subsection
(b)(1) disposition because of B.F.L.s
multiple failed placements in non-detention,
residential settings, as well as B.F.L.s
severe flight risk.
Master Hitchcock agreed with the
Departments assessment. Based on the record
in B.F.L.s case, he concluded:
[B.F.Ls] delinquent [behavior] ... stem[s]
from mental health issues which have been
amply diagnosed and identified by mental
health clinicians during his time in
Fairbanks. ... [T]hese evaluations reveal a
very complex individual who has been
consistently unable to manage his behavior
within the restrictions imposed upon him
through probation or institutional
commitment. He exhibits a consistent pattern
of temperamental outbursts and rages which
place him time and time again in conflict
with authority.
Master Hitchcock then concluded,
based on B.F.L.s behavior and these
psychological evaluations, that the superior
court should impose a subsection (b)(1)
disposition that less restrictive
alternatives would not meet B.F.L.s
rehabilitative needs or provide the community
sufficient protection from B.F.L.s criminal
behavior. Master Hitchcock declared:
[B.F.L.] needs to re-engage in a
comprehensive youth correctional program
before he turns 18. Society has a keen
interest in this happening, else [B.F.L.]
become yet another candidate for correctional
placement as an adult. ... [He] is no
longer a child; he will be an adult in four
months. There is precious time left to
change the future for [B.F.L.]. He is going
to need help and support in making this
happen. It is my recommendation that the
institutional order be entered.
These findings and this
recommendation were reviewed and approved by
Superior Court Judge Eric A. Aarseth on March
10, 2009.
The test to be employed when evaluating the superior
courts decision
As we have already discussed, Alaska law
requires the State to prove by a preponderance of
the evidence that the particular type of
disposition chosen by the superior court i.e., a
disposition under subsection (b)(2), subsection
(b)(3), or subsection (b)(1) of AS 47.12.120 is
the least restrictive alternative that will
satisfy the minors rehabilitative needs and
protect the public. See AS 47.12.140(2) and
Delinquency Rule 11(e).
In his briefs to this Court, B.F.L.
acknowledges that this is the test, but B.F.L.
argues that further proof is needed before the
superior court imposes a disposition under
subsection (b)(1) i.e., a disposition that allows
the Department to place the minor in a detention
facility. B.F.L. relies heavily on something that
this Court said in Matter of J.H., 758 P.2d 1287
(Alaska App. 1988).
In J.H., this Court declared that, because
[t]he goal of rehabilitation is always of paramount
importance in childrens proceedings, there is a strong
presumption against institutionalization ... in all but
extreme cases. 758 P.2d at 1291, citing R.P. v. State,
718 P.2d 168, 169 n. 1 (Alaska App. 1986). Based on
this passage from J.H., B.F.L. argues that the superior
court should not have imposed a subsection (b)(1)
disposition in his case, because his case is not
extreme.
The State argues that this passage from J.H.
has been superseded by the Alaska Supreme Courts later
enactment of Delinquency Rule 11(e) and the Alaska
Legislatures later enactment of AS 47.12.140.
Delinquency Rule 11(e) states that, to
support a particular disposition [in a delinquency
proceeding], ... the Department must prove by a
preponderance of the evidence that the disposition is
the least restrictive alternative appropriate to the
needs of the juvenile and the protection of the
community. And, in a similar vein, AS 47.12.140(2)
defines the least restrictive alternative as that
disposition [which] is no more restrictive than is ...
conducive to the minors rehabilitation[,] taking into
consideration the interests of the public.
We believe that the State has the better of
this argument.
The statements that this Court made in J.H.
concerning the proper disposition of delinquency
proceedings were directly based on our earlier decision
in R.P. v. State, 718 P.2d 168 (Alaska App. 1986). The
problem that this Court confronted in R.P. was that, in
1986, Alaska law provided the same three alternative
types of disposition in delinquency proceedings, but
[u]nfortunately, the statute provide[d] little guidance
for the [superior] court to use in choosing one
alternative and rejecting the others. Id. at 169. In
other words, there was no statute or court rule that
provided a standard for choosing one type of
disposition over another.1
To fill this legislative vacuum, this Court
exercised its common-law power to announce a standard
that would govern the superior courts choice of
disposition:
We therefore recognize the standards
promulgated by the IJA-ABA Juvenile Justice
Standards Project, Standards Relating to
Dispositions (tentative draft 1977) ... .
Under [these] Standards, the court must
consider and reject less restrictive
alternatives prior to imposition of more
restrictive alternatives. Further, the state
has the burden of proving that less
restrictive alternatives are inappropriate by
a preponderance of the evidence. See
Standards, 2.1 and commentary at 34-35. The
court must enter specific written findings
why the less restrictive alternatives are
inappropriate in a given case, and those
findings must be supported by a preponderance
of the evidence. Id. at 37-38.
R.P., 718 P.2d at 169 (emphasis in the
original).
In an accompanying footnote
(footnote 1), this Court declared that the
goals of disposition in juvenile delinquency
proceedings were different from the goals of
sentencing in adult criminal proceedings. We
stated:
In adult criminal proceedings, the goal
of rehabilitation is generally considered on
equal footing with other sentencing goals.
See State v. Chaney, 477 P.2d 441, 444
(Alaska 1970). However, in juvenile
dispositions, the goal of rehabilitation is
of paramount importance. See In re Aline D.,
... 121 Cal.Rptr. 817, 536 P.2d 65, 70
([Cal.] 1975). Consequently, to further the
goal of rehabilitation, the IJA-ABA Standards
create a presumption against coercively
removing a child from his or her home in all
but extreme cases. See Standards, 3.3 B at
61.
For present purposes, the important
thing to note about the preceding footnote is
that, again, this Court was exercising our
common-law power to declare the law in the
absence of a governing statute or court rule.
When we declared that the goal of
rehabilitation is ... paramount in
delinquency proceedings, we did not cite any
Alaska statute or court rule; rather, we
cited a decision of the California Supreme
Court a decision that, of course, has no
binding power in Alaska court proceedings.
And when we declared that there was a
presumption against coercively removing a
child from his or her home in all but extreme
cases, we cited the ABA Standards again, a
non-binding source. In effect, this Court
was saying that we were persuaded to adopt
these standards as the law that would govern
future Alaska delinquency proceedings.
But after our decision in R.P., the
supreme court enacted Delinquency Rule 11(e)
and the legislature enacted AS 47.12.140.
Between them, this court rule and this
statute address the same issues that we
addressed in R.P.: (a) defining the goals of
a juvenile delinquency disposition; (b)
specifying the test that the superior court
must use when choosing among the types of
disposition authorized by AS 47.12.120(b)
(i.e., the least restrictive alternative
test); and (c) identifying the burden of
proof that applies to the question of which
level of disposition is the least restrictive
feasible alternative.
Now that Alaska has a court rule
and a statute that govern these matters, this
court rule and this statute have replaced any
contrary common-law rule that this Court
announced in R.P. and J.H.. As we noted in
Dominguez v. State, 181 P.3d 1111, 1114
(Alaska App. 2008), [W]hen a statute or court
rule has been enacted for the purpose of
governing a matter that was once governed by
a common-law rule, the statute or court rule
supersedes the common-law rule.
Delinquency Rule 11(e) and AS
47.12.140 still embody a presumption against
the involuntary removal of a minor from their
home. Indeed, this presumption applies
whether the proposed removal is to a non-
detention facility under subsection (b)(3) or
(b)(5) of AS 47.12.120 or to a detention
facility under subsection (b)(1) of the
statute. The presumption against involuntary
removal is simply the legal corollary of the
rule that the State must affirmatively prove
that the superior courts chosen disposition
is the least restrictive alternative. In
effect, this burden of proof establishes a
presumption that the superior court must
impose a non-removal disposition (i.e.,
either or both of the dispositions defined in
subsections (b)(2) and (b)(4) of the statute)
unless the State proves otherwise.
But Delinquency Rule 11(e) and AS
47.12.140(2) have superseded the portions of
R.P. and J.H. where we declared that, in all
but extreme cases, the superior court must
refrain from coercively removing a child from
his or her home under either AS
47.12.120(b)(3) or (b)(1).
As this Court explained in footnote
1 of R.P., 718 P.2d at 169, this extreme
cases limitation was based on the underlying
premise that disposition decisions in
delinquency proceedings were fundamentally
different from disposition decisions in
criminal cases, in that the paramount goal of
a juvenile delinquency proceeding was
rehabilitation of the minor, with all other
goals (including protection of the public)
having lesser importance.
This underlying premise the
premise that, in delinquency proceedings, the
goal of rehabilitation is more important that
any other goal is no longer true. Both AS
47.12.140(2) and Delinquency Rule 11(e)
declare that there are two primary goals when
choosing the proper disposition in a
delinquency proceeding: the rehabilitative
needs of the juvenile and the protection of
the community.
Moreover, Delinquency Rule 11(e)
declares that, when the superior court
selects the least restrictive alternative
that will achieve these two goals, the
governments burden of justifying a particular
level of restriction is by a preponderance of
the evidence. In other words, the government
must show that, more likely than not, the
selected disposition represents the least
amount of restriction required to achieve the
two goals of rehabilitation and protection of
the public.
To the extent that our references
in R.P. and J.H. to extreme cases suggest
that some higher burden of proof applies to a
disposition under subsection (b)(3) or (b)(1)
of AS 47.12.120, or that some additional
factor must be proved to justify a
disposition under (b)(3) or (b)(1) of the
statute, we now disavow any such suggestion.
Why we affirm the superior courts decision
The remaining question is whether the record
supports the superior courts conclusion that a
disposition under subsection (b)(1) of the statute
i.e., an order that allows the Department to place
B.F.L. in any facility, including a detention
facility is the least restrictive alternative
that will satisfy the minors rehabilitative needs
and protect the public.
As we acknowledged in J.H., and again more
recently in G.A.D. v. State, 865 P.2d 100 (Alaska App.
1993), the requirement of a least restrictive
alternative disposition does not require that a child
be allowed to fail at each successively more
restrictive level of placement before placement in the
next restrictive level may be made. G.A.D., 865 P.2d
at 102 (quoting J.H., 758 P.2d at 1291). Rather, the
superior court can authorize a detention placement
whenever the State presents substantial evidence that
lesser measures will likely fail to meet the twin goals
of disposition specified in AS 47.12.140(2) and
Delinquency Rule 11(e). G.A.D., 865 P.2d at 102; J.H.,
758 P.2d at 1291-93.
B.F.L.s case, however, does present an
instance where the two lesser levels of restriction
i.e., returning him to his parents home under
conditions of probation, and placement at residential
programs have been tried and have failed.
As we explained in the first section of this
opinion, B.F.L. was originally placed with his mother;
when that didnt work, he was placed in the residential
treatment program offered by Alaska Childrens Services.
After B.F.L. absconded from that program, he was housed
in a detention facility for several months, but B.F.L.
persuaded the superior court to release him to the
Alaska Military Youth Academy from which he absconded
within a matter of weeks.
This time, the superior court issued a
disposition order under subsection (b)(1) of the
statute that is, an order that allowed the Department
to place B.F.L. in a detention facility. But several
months later, B.F.L. succeeded in having the superior
court amend that order to a subsection (b)(2)
disposition that is, a probationary disposition that
allowed B.F.L. to be released to live with his mother
in Anchorage. Within weeks, B.F.L. absconded from this
placement, and he remained at large for two months,
until he was arrested for burglary and vehicle theft in
Dillingham.
This record provides substantial support for
the superior courts conclusion that a detention
disposition i.e., a disposition under subsection
(b)(1) of the statute is the least restrictive
alternative available.
B.F.L. argues that his situation is more
promising than it might appear, and that there is some
reason to believe that he would be successful if he was
released on probation and allowed to live with his
father in Two Rivers. But as we explained in G.A.D.,
865 P.2d at 104, our task as an appellate court is not
to reweigh the evidence or see if it could possibly be
interpreted in a different fashion. Rather, we must
affirm the superior courts decision if it is supported
by substantial evidence.
Under the substantial evidence test, we must
uphold the superior courts decision if the record
contains evidence that a reasonable mind might accept
as adequate to support the challenged conclusion. Y.J.
v. State, 130 P.3d 954, 957 (Alaska App. 2006).2 Here,
Master Hitchcock and Judge Aarseth could reasonably
conclude that a disposition order under subsection
(b)(1) was the least restrictive alternative that would
satisfy the twin goals of rehabilitation and protection
of the community.
Accordingly, the judgement of the superior
court is AFFIRMED.
_______________________________
1 In 1987 (the year after this Court issued our decision in
R.P.), the supreme court enacted Delinquency Rule 11(e),
which for the first time specified that to support a
particular disposition [in a delinquency proceeding], ...
the Department must prove by a preponderance of the evidence
that the disposition is the least restrictive alternative
appropriate to the needs of the juvenile and the protection
of the community. See Supreme Court Order No. 845
(effective August 15, 1987).
The corresponding statute, AS 47.12.140(2), was not enacted
until 1996. See SLA 1996, ch. 59, 46. Prior to that time,
the only statutory guidance or directive to the superior
court was found in former AS 47.10.082 (Best interests of
child and other considerations). That statute read: In
making its dispositional order [in a delinquency
proceeding,] the court shall consider the best interests of
the child and the public.
2 Quoting Smith v. Sampson, 816 P.2d 902, 904 (Alaska 1991).
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